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ERWIN v. GIBSON et al.
BIRDSONG, Presiding Judge.
Default judgment. Gordon Superior Court. Before Judge White.
We granted discretionary appeal to defendant Frankie Lane Erwin in this personal injury case, as to the trial court's refusal to set aside a default judgment in the amount of $257,000. Appellant timely forwarded to his insurer the complaint which had been served on him. The insurer undertook, but failed, to file a timely answer; the reason offered is that the adjustor engaged in settlement negotiations with plaintiffs' attorney and was awaiting a return call from plaintiffs' attorney on an offer of $15,000, but instead plaintiffs took a default judgment. It is not contended there was any fraud by plaintiffs' attorney in the matter.
Defendant was not given notice of a hearing on the amount of damages, although defendant's location was known to plaintiffs, and although OCGA 9-11-55 (a) as to default judgments mandates that if the action "is one ex delicto or involves unliquidated damages," plaintiffs shall be required to introduce evidence as to the amount of damages "with the right of the defendant to introduce evidence as to damages and the right of either to move for a new trial in respect of such damages." Held:
OCGA 9-11-55 (a) appears to give a guarantee to a defaulting defendant of a hearing as to amount of damages in ex delicto actions and cases involving unliquidated damages, but then fails to provide that notice of such a hearing must be given to the defaulting defendant.
In Chrysler Credit Corp. v. Brown, 198 Ga. App. 653 (402 SE2d 753) and Newell Road Bldrs. v. Ramirez, 126 Ga. App. 850 (192 SE2d 184) we applied the general waiver provisions of 9-11-5 (a) to the provisions of 9-11-55 (a) entitling a defaulting defendant in certain cases to introduce evidence on amount of damages. We concluded that, because he failed to answer the suit, a defaulting defendant has waived his right to notice of the hearing to which the default statute entitles him when he fails to answer the suit.
Jones & Ledbetter, Joseph D. Little, for appellees.
Davis & White, Jefferson L. Davis, Jr., Brinson, Askew & Berry, Hendrick L. Cromartie III, Joseph B. Atkins, Jenkins & Eells, Frank E. Jenkins III, Steven J. Misner, for appellant.
Thursday May 21 08:35 EDT

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